My blog provides alternative view on Kashmir dispute and politics of South Asia, especially India Pakistan relations. It aims to educate people that they can make informed judgements.

Saturday, 14 July 2018

Bad man theory of law, Babar Sattar

Bad man theory of law, Babar Sattar

If you think a judicial verdict is about legal
reasoning that explains how a judge came to a certain conclusion while being
guided by legal texts, you don’t want to read Judge Muhammad Bashir’s judgment.
Those who are already convinced that Nawaz Sharif is a money-launderer living
on stolen money need no reasoning. Those who were relying on a judicial account
of how law and legal processes lead to such conclusion won’t find anything
useful in the judgment. It adds nothing to what has been said in the media
trial convicting NS.

Jurists have long mulled over what judges say
they are doing while deciding cases, what they actually do and if there is a
gap between the two. Theories such as formalism and legal realism are rooted in
such inquiry, the purpose of which is to be able to predict legal outcomes with
certainty. Rule of law is different from rule of men because – irrespective of
the personal morality of a judge – it allows one to predict legal outcomes by
applying statutory texts, settled legal principles and judicial tests to the
facts of a case.

Oliver Wendell Holmes, Jr, a proponent of legal arealism
had argued that, “the prophecies of what the courts will do in fact, and
nothing more pretentious, are what I mean by the law.” He articulated the bad
man theory of law: bad men are not concerned with the morality or logic of law
but only the penal consequences it will produce for them. Herbert Hart’s ‘The
Concept of Law’ was a blow to legal realism; it underscored that, if courts
weren’t guided by legal rules, the distinction between rule of law and rule of
men would vanish.

In Pakistan, we are still debating the need for
due process. Justice Scalia argued in ‘A matter of Interpretation’ that, “of
all criticisms levelled against textualism, the most mindless is that it is
formalist. The answer is of course it is formalistic! The rule of law is about
form… A murderer has been caught with blood on his hands, bending over the body
of his victim; a neighbour has filmed the crime and the murderer has
confessed…We nonetheless insist that before the state can punish this
miscreant, it must conduct a full-dress criminal trial…Is that not formalism?”

The Panama case conducted by the Supreme Court
and the accountability trial that has convicted NS and his daughter will be
remembered for their exceptionalism and not their allegiance to settled legal
rules. Does this make judicial outcomes less predictable in Pakistan? No, it
doesn’t – if we employ the bad man theory of law with an Orwellian (Shooting
the Elephant) twist. For example, we knew NS and Maryam would be convicted as
the ‘people’ expected them to after their media trial. There are similar
predictions regarding the appeal.

Many would declare that the purpose of law
stands defeated when those ‘everyone’ knows to be crooked get away using due
process, legal niceties and cunning lawyers. The bad men must be punished at
all cost, including tweaking due process and applying principles and precedents
such that they generate desirable outcomes. With this as the dominant and
acceptable thought process, legal outcomes are largely predictable, except that
they have little to do with legal reasoning. The marvel produced by Judge
Bashir fits right in.

The extraordinary thing about Judge Bashir’s
verdict is that it is utterly devoid of legal reasoning: it relies exclusively
on the kind of commonsense inciting assumptions (starting with “how is it
possible…?”) that formed the basis of NS’ conviction in the media trial.

Let’s look at some key issues. The prosecution’s
star witness was Wajid Zia, the head of the SC-constituted JIT that had built
the case against NS. The defence argued that it is settled law that a trial
court can’t rely on an investigation officer’s opinion or a JIT report. The
judge explained why he is deviating from settled law as follows:

“The reason in those authorities is that
generally in our setup IOs are not experts. While [the] JIT was constituted at
[a] high level by [the] Hon’ble Supreme Court of Pakistan, 30 to 40 experts
assisted the JIT as stated by PW 16 in cross examination. This court has already
given [the] opinion that [the] report of [the] JIT is not binding on the court
but same can be considered if it is convincing and found based on reliable
documents/material that opinion can be accepted and relied upon”.

That’s it: an SC-made JIT and a judge’s opinion
that the JIT’s opinion is convincing equals complete reliance on the JIT’s
opinion to return a guilty verdict.

The court doesn’t find that NS owns the
apartments or owns companies that own the apartments or transferred funds to
purchase them. So how does he become their owner, and thus living beyond means
as a public office holder? Here’s the reasoning: “Interviews of Hassan Nawaz
and Hussain Nawaz accused are showing that they lived in those apartments
during years 1993 to 1996… [which is] when those apartments were purchased
through offshore companies”. (Hassan’s Hard Talk interview is actually from
1999 not 1993).

“The ages of [the] children…in year 1993 were
about 20 years, 18 years and 16 years respectively…They were dependents
financially and could not purchase Avenfield apartments without financial
assistance of anyone else father (sic).” “Generally, children remain dependent
on their parents during their tender ages therefore accused No 1 cannot say
that he had not provided any money to them to purchase the apartments.”

The court insinuates that as NS sometimes stayed
at the apartments his children occupied, he has constructive possession. And,
as the children couldn’t purchase them through their own means, NS must have
provided the funds that he didn’t legally have and thus he is the benami owner.
The court doesn’t verify the dates of possession of different apartments (there
are four and purchased in different years) or explain why it disregards the
submission that the children’s grandfather supported them (and not the father).

The benami ownership theory is based entirely on
generalised assumptions about family relations in our society. The court holds
that, “it was difficult to dig out actual owner beneficial (sic) of [the]
offshore companies formed in tax heaven (sic)…Mian Nawaz Sharif has distanced
(sic) from any transaction in respect of Avenfield property…[but] had remained
chairman of FZE, which is a company of his son…”

So how did the court conclude that it was
actually NS who laundered money to purchase the apartments and is thus liable
for corrupt practices? It holds that a document from Al-Taufeeq proceedings (to
which NS wasn’t party) “shows that the loan from Coomber was provided to Que
holding by Hassan Nawaz, which further provided funding to Quint
Paddington…Quint was also provided loan of 614,000 pounds by FZE in which
accused [NS] was employee. These all acts show that the entire family daughter,
sons and father are one and the same monolith. The accused Mian Nawaz Sharif cannot
disassociate by oral assertions that he has got no connection.” There. They are
all mixed up, so 10 years for NS.

What’s the case that leads to a seven-year jail
term for Maryam? “Mr Radley has explained that [the] Calibri font was available
for testing purposes etc and it was not available commercially… it is clear
that it is not disputed that Calibri font was not commercially available before
31.01.2007.” Hence proved that “the trust deeds are filed to mislead the court
and does not prepared (sic) on date noted in this deed.” As the deeds are
bogus, “accused Maryam Nawaz was instrumental in concealment of properties of
his (sic) father…” – thus guilty of aiding/abetting.

And why didn’t the court apply settled tests
laid down by the SC to determine if a transaction qualifies as benami? Or why
wasn’t a Sec 9(a)(v) offence under NAB Ordinance made out (both of which
require prima facie evidence implicating the accused)? Simple: “This case has
[a] different set of facts therefore distinguishable from usual cases of assets
beyond sources.”

You may or may not wish NS and Maryam to rot in
jail. But what Judge Bashir has produced is an embarrassment for all of us
associated with the justice system. Will the sloppy use of law as a power tool
entrench rule of law? Even if the elephant had to be shot, couldn’t it have
been done with some grace that the gun and the shooter didn’t have to cut a
sorry figure?

About Me

Dr Shabir Choudhry has done extensive research on the issue of Kashmir and Indo Pakistan relations. He passed BA Honours in Politics and History, and Mphil in International Relations (title of the thesis, ‘Kashmir and Partition of India’); and title of his PhD thesis is ‘Kashmir- An issue of a nation not a dispute of a land’.

Apart from this Dr Shabir Choudhry passed Post Graduates Certificates in Education, and NVQ Assessor’s qualifications; and taught English in London.

Political Achievements

Founder member of JKLF (Jammu Kashmir Liberation Front established in 1977) and got elected as a Press Secretary in 1984.

Became its Secretary General in 1985, and resigned from this post in 1996.

Got elected President of JKLF and Europe in May 1999, and decided not to contest in elections of July 2001.

Said good - bye to the JKLF as it is in many groups and is largely seen as advancing a Pakistani agenda on Kashmir dispute, and set up a new party Kashmir National Party in May 2008.

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At present, he is:

·Spokesman Kashmir National Party and Director Diplomatic Committee;

·Spokesman for International KashmirAlliance;

·Founder member and Director Institute of Kashmir Affairs;

Previously

·A founder Member and Trustee/ Director of London based registered charity, Kashmir Foundation International and resigned from this position in August 2001.

·Regularly take part in the Sessions of the UN Human Rights (Commission) now Council in Geneva; and address various conferences and seminars to oppose violence and highlight the Kashmir cause.

·Participated in a Round Table Conference on Kashmir, organised by Socialist Group of European Parliament in Brussels in 1993.

·Addressed as a Chief Guest in a seminar on issue of Mangla Dam during the UN Sub Commission’s proceedings in August 2003.

·Addressed as a key - note speaker in a seminar on the issue of Gilgit and Baltistan, organised by Association of British Kashmiris.

·Addressed as a keynote speaker on human rights conference in Paris in 1991.

·Addressed at CambridgeUniversity as a Chief Guest in a conference on Kashmir in 1990.

·Addressed as a keynote speaker at New Delhi conference on Kashmir, which was part of Track Two diplomacy in November 2000.

·In September 2008, addressed a Conference arranged by Interfaith International in Geneva, topic of which was:“Kashmir Issue, Terrorism and Human Rights”.

·Addressed as a speaker in a NGO Conference on Self - Determination in Geneva in August 2000.

·Addressed as a keynote speaker in a fringe meeting of Liberal Democrats at their Annual Conference in Brighton in 1995.

·Participated in World Human Rights Conference in Vienna in 1993.

·Before President Clinton's visit to India and Pakistan in 2000, lead a JKLF delegation to the State Department to discuss Kashmir dispute and situation in South Asia.

·Also had two rounds of meetings with senior State Department officials before President Musharraf’s meeting to Washington in June 2003.

·Apart from that had meetings with senior officials including Ministers of different countries, and also held many meetings with the State Department and Foreign and Commonwealth Office officials on number of occasions.

·Played important role in advancing a Kashmiri perspective on the issue of Jammu and Kashmir; and also helped Baroness Emma Nicholson with her report ‘Kashmir: present situation and future prospects’, which was adopted by the European Parliament in May 2007.

·Won first prize in an essay competition in Urdu in 1976. It was organised by High Commission of Pakistan in London, and title of the essay was 'Qaaid-e- Azam's role in Islamic History'.

·Apart from that have addressed conferences in Brussels, Geneva, Toronto, Islamabad, Delhi, and

Publications

·Got first Urdu novel ‘Fareena’ published at the age of eighteen.

·Second Urdu novel ‘Bay-Khataa’ which was about the problems of Asian youths living in UK published in 1983.

·Third Urdu book ‘Pakistan and Kashmiri struggle for independence’ published in 1990.

·Fourth Urdu book is also on Kashmiri struggle, 'Is an independent Kashmir a conspiracy?'

·Apart from that has twenty books and booklets published in English on various aspects of the Kashmiri struggle.

·Recent publications are: Kashmir dispute as I see it

·Different perspective on Kashmir

·JKLF visit to Pakistan Administered Kashmir

·Kashmir Needs Change of Heart

·If not self - determination then what?

·Emma Nicholson report- who has won?

·Struggle for independence, Jihad or proxy war (Introduction by Baroness Emma Nicholson)

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Future publications

Following books were completed some time ago and shall be published in near future:

In Search of Freedom - My visit to Srinagar and Islamabad

Kashmir and Partition of India

A brief background

Dr Shabir Choudhry was born in a small village called Nakker Shimali (near Panjeri) in District Bhimber, Azad Kashmir. He went to UK in 1966, and like other people from the region, holds a dual nationality. He left secondary school in 1970 with no qualifications and began his life as a textile worker.

In 1975 he started part time studies and passed Matriculation from Government High School Panjeri, passed ‘O’ and ‘A’ levels from UK, and resumed full time degree course in 1981, and passed BA (Hons) in Politics and History in 1984.

He continued full time and part time jobs until he got his Mphil. He passed his PGCE (Post Graduates Certificate in Education) in 1990, and then started full time job as a Lecturer. Due to health problems he resigned from teaching in 1999. At present he is self - employed, provides private tuition, translation and interpretation and consultancy.

Through out his adult life he has actively worked for the cause of Kashmir, and even during long illness he effectively carried out his responsibilities as a leader of the JKLF, a ‘prolific writer’ and consistent campaigner of Rights Movement and peace in Jammu and Kashmir and South Asia.